The Hanko Case
It is therefore within this legal and administrative context that the following disciplinary cases arose. Mr. Hanko faced two charges. The first was a charge of possession of contraband in the form of a small amount of heroin to which Mr. Hanko pleaded guilty. The second charge, failure to provide a urine sample, was one to which he pleaded not guilty. Officer Buxton testified that based upon reports he had received that Mr. Hanko was found in possession of various items of drug paraphernalia in his cell, including an item which subsequently tested positive for THC, he was asked to make a demand of Mr. Hanko. Mr. Routley asked Officer Buxton whether he had any reason to believe that Mr. Hanko had used drugs. Officer Buxton replied that he had based the demand upon the reports that the drug paraphernalia had been found during a general institutional search. Mr. Routley said, "Youíve got to have reasonable grounds to make a demand. You say that this is based upon the officerís reports and the drug paraphernalia found in his cell. Did you think that he was under the influence at the time you made the demand?" Officer Buxton replied, "I donít know, Iím not an expert on these matters."
Mr. Hanko, in his own defence, said that it was unfair to give a prisoner a two-hour deadline to urinate upon demand. He said that he was taken to segregation and was "stripped, given a bottle and told to piss -- itís totally intimidating." Mr. Routley asked Officer Buxton why Mr. Hanko had been told to strip. Officer Buxton said that he thought he might have a contraband bottle on him. Mr. Hanko continued that the whole situation added to his stress and although he realized that the two hour period was set out in the legislation, he still thought that in the particular circumstances it was unfair. He stated:
Iíve provided urine samples before. In fact, I gave a negative sample a week before this and another one three days afterwards and Iíve given three clean sample since this incident. I gave all of these in the living unit and Iíve never had a problem supplying the sample when itís asked for under decent conditions, but on this occasion because of all the stress and the circumstances I couldnít comply within the two hour period. Why canít they leave a guy in his cell and have him stay there until he can provide a sample? Heís not going anywhere. Is that so unreasonable? I didnít refuse to give them a sample, I tried and I couldnít do it.
The issue of extension of time beyond the two hours had already been dealt with in another case by Dean Fox, the Independent Chairperson at Kent, in the context of extending the period when a prisoner is seeking to obtain the advice of counsel after being first given the demand. In the Sinclair case, Dean Fox stated, "The offender should be given a reasonable time to consider the basis of the demand and to prepare his representation pursuant to s. 57. Two hours would not be unreasonable. However, what is a reasonable amount of time to make objections will always be a question of fact." The same argument can be made by analogy to the reasonableness of the time to provide the sample.
Mr. Routley stated that he wanted to think about Mr. Hankoís submission and the case was adjourned for one week. When the case was resumed, Mr. Routley said that he had some further questions for Mr. Hanko. He asked whether he had been offered any water or anything else to drink. Mr. Hanko said he had and drank two or three glasses but that did not help. Mr. Hanko also repeated what he said last week that he had given, both before and since, urine samples in the living unit on a voluntary basis and had no problem. That was why he felt that it was the stress of this particular demand and the strip search which preceded it which caused the problem. Mr. Routley said, "Iím going to give you the benefit of the doubt. I hear the ring of truth in what youíve got to say." On the other charge to which Mr. Hanko had pleaded guilty, in the absence of any disciplinary record, he was sentenced to 30 days suspended for 90 days.
At the end of the hearing I spoke to Mr. Hanko and asked him what he thought about the disciplinary process as he had experienced it over the last few months. He said, "I hate to admit it but I think it is a fair process."
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